Paulino Arias v. Mechkowski et al

Filing 7

OPINION AND ORDER: For the foregoing reasons, the Petition for a Writ of Habeas Corpus is GRANTED. Within seven calendar days of the date of this Order, Respondents shall provide an individualized bond hearing to Petitioner to determine whether her detention is justified. Should they fail to provide such a hearing, Respondents shall release Petitioner from detention. The Clerk of Court is directed to close this case. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 9/25/2015) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JUANA YVELISSY PAULINO ARIAS,
:
Petitioner,
:
:
-against:
:
SCOTT MECHKOWSKI, et al.,
:
Respondents. :
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9/25/15

15 Civ. 6092 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
On August 4, 2015, Petitioner Juana Y. Paulino Arias filed a Petition for a Writ of
Habeas Corpus, pursuant to 28 U.S.C. § 2241, challenging her continued detention by
Respondents. For the reasons stated below, the Petition is granted.
I.

BACKGROUND
The relevant facts are taken from the Petition. Petitioner -- a citizen of the Dominican

Republic -- entered the United States as a lawful permanent resident in 1991. On January 11,
2005, Petitioner pleaded guilty to three counts of grand larceny and was sentenced to probation.
On December 2, 2010, Petitioner was arrested again on grand larceny charges. She was released
on bail on July 14, 2011, and the charges were dismissed in March 2012. On April 24, 2012,
Petitioner pleaded guilty to identity theft and was sentenced to probation.
On October 30, 2014, more than three years after Petitioner’s most recent detention and
more than two years after her April 2012 guilty plea, Petitioner was arrested by the U.S.
Immigration and Customs Enforcement (“ICE”) and placed in immigration detention. She has
remained in detention since that date, based on an immigration judge’s determination that
Petitioner's prior convictions require mandatory detention under section 236(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1226(c).

The Petition asserts that §1226(c) does not apply to Petitioner because, among other
things, she was not detained promptly after her release as required by that statute. On September
14, 2015, Respondents submitted a letter stating that -- because “ICE detained Arias three years
after her most recent conviction” -- this case “is not distinguishable” from the facts of two cases
this Court has decided previously: Giron v. Shanahan, No. 15 Civ. 2951, 2015 WL 5334046
(S.D.N.Y. Sept. 11, 2015), and Minto v. Decker, No. 14 Civ. 07764, --- F. Supp. 3d. ----, 2015
WL 3555803 (S.D.N.Y. June 5, 2015), appeal docketed, No.15-2527 (2d Cir. Aug. 7, 2015).1
Although Respondents disagree with the holding in Minto and Giron, they “recognize[d] that
additional briefing may not be desired or required.”
II.

DISCUSSION
For the reasons fully stated in Minto and Giron, Petitioner is not subject to mandatory

detention under § 1226(c). The language of § 1226(c) is unambiguous; “when the alien is
released” means “at or around the time of release.” Minto, 2015 WL 3555803 at *4; accord
Giron, 2015 WL 5334046 at *3. Accordingly, the Department of Homeland Security “may
detain without a bond hearing a non-citizen who has committed certain crimes only if it does so
at or around the time the person is released from custody.” Minto, 2015 WL 3555803 at *4.
Here, as Respondents acknowledges, Petitioner was arrested by ICE over three years after
her most recent detention. A delay of over three years is not “at or around the time of release.”
See Giron, 2015 WL 5334046 at *3 (collecting cases). As such, Petitioner is not subject to
mandatory detention under § 1226(c) and is entitled to a bond hearing under § 1226(a).

1

The Court thanks the Government for its professionalism. Its concession saves valuable
time and will allow Petitioner to obtain a bond hearing sooner.
2

As this holding is sufficient to find for Petitioner, the remaining arguments in the Petition
are not addressed.
III.

CONCLUSION
For the foregoing reasons, the Petition for a Writ of Habeas Corpus is GRANTED.

Within seven calendar days of the date of this Order, Respondents shall provide an
individualized bond hearing to Petitioner to determine whether her detention is justified. Should
they fail to provide such a hearing, Respondents shall release Petitioner from detention.
The Clerk of Court is directed to close this case.
SO ORDERED.
Dated: September 25, 2015
New York, New York

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